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Judgment
S.B. Sinha, J.—In this writ application the Petitioner has prayed for quashing of an order dated 27.10.1984 passed by the Respondent No. 3 as contained in Annexure-4 to the writ application and order dated 31.8.1985 passed by the Respondent No. 2 as contained in Annexure-5 to the writ application as also the order dated 3.6.1986 passed by the Respondent No. 1 as contained in Annexure-6 to the writ application.
By reason of the said orders, the said Respondents in purported exercise of their powers conferred upon them u/s 71(A) of the Chotanagpur Tenancy Act thereinafter referred to as the Act) directed restoration of a land being plot No. 24 measuring 30 decimalized plot No. (sic) 10 decimals situated in Village Gari.
Allegedly, the aforementioned plots were recorded in the name of the father of the Respondent No. 4 who surrendered the lands in favour of the then ex-landlord by a registered deed dated 24.10.1940, who allegedly came in khas possession thereof.
The ex-landlord, therefore, by virtue of an indenture dated 7.1.1942 made a Chhapparbandi settlement in favour of the Ranchi Za-mindari Limited. A Copy of the said indenture is contained in Annexure-1 to the writ application.
By reason of a registered deed of sab dated 6.12.1945 the aforesaid Ranchi Zamindarl Limited transferred the lands in question in favour of one Tulisidas Kanodia of Calcutta. The said Tulisidas Kanodia also by reason of a registered deed dated 29.9,1967 transferred the said lands in favour of the Petitioner''s father describing the said lands as Chhaparbandi lands.
According to the Petitioners his father came in possession of the said lands as a chhaparbandi tenant and had been paying chhaparbandi rent in respect thereof.
The Respondent No. 4, however, filed an application u/s 71(A) of the Chotanagpur Tenancy Act praying for restoration of the aforesaid lands alleging therein that the father of the Petitioners is in illegal occupation thereof.
The Petitioners having been noticed in the said proceedings appeared in the aforesaid case and filed a show cause, inter alia, stating therein that lands being chhaparbandi in return the provisions u/s 71(A) of the Act have no application in the facts and circumstances of the case.
By reason of the impugned order as contained in Annexure-4 to the writ application, the Respondent No. 3 held that the purported surrender effected by the father of the Respondent No. 4 in favour of the then ex-landlord (as contained in Annexure-1 to the writ application) being in lieu of money consideration and the same constituting sale was and further as the said purported surrender in the month of October i.e. during an Agricultrual year and not at the end thereof, the said surrender was illegal being hit by Section 46 and 72 of the C.N.T. Act.
The Petitioners thereafter preferred an appeal against the said order and that by reason of the order dated 31.8.1985 as contained in annexure-2 to the writ application, the said appeal was dismissed by the Respondent No. 2.
The Respondent No. 1, dismissed the said revision application filed by the Petitioners only on the ground that no permission was obtained from the competent authority before the deed of surrender was executed.
Mr. P.K. Prasad, learned Counsel appearing on behalf of the Petitioner submitted that the lands in question having been converted into chhapparbandi lands, the provisions of Section 71(A) of the Chotanagpur Tenancy Act, have no application whatsoever.
In this connection, the learned Counsel has relied upon a decision of this Court in the case of Aswini Kumar Roy v. State of Bihar reported in 1987 B.L.T 332 and Murlidhar Gupta v. State of Bihar reported in . 1989 B.L.J.R 152.
So far as the first submission made by the counsel for the Petitioners is concerned, in my opinion, there is substance in it, in as much as a surrender can be effected even during the agricultural year as the said provision has been made for the benefit of the landlord and not for the benefit of the tenant. Further in terms of Sub-section (3) of Section 72 of the aforementioned Act in arrangement by and between the landlord and the tenant effecting a deed of surrender otherwise than as contemplated in Section 72(1) of the Chhotanagpur Tenancy Act is permissible. Reference in this connection may be made to a decision of this Court in C.W.J.C. No. 1202 of 1986 (R) disposed of on 4.8.1989 Vishwanath Kedia v. the State of Bihar and Ors.
However, if there is a finding that in fact the recorded tenant did not intend to surrender the land in question but sold the same for consideration then the said purported deed of surrender would be merely a camouflage and thus the same may be held to be a sham transaction as a result whereof the ex-landlord will not derive any interest to re-entry in the holding of the raiyat.
It is needless to say that in such a situation, the purported surrender would be wholly illegal and without jurisdiction being in contravention of the provision contained in Section 46 of the Chotanagpur Tenancy Act.
However, if a dispute had been raised that an agricultural holding has been converted into a chhaparbandi one and that the same had ceased to be agricultural holding, the provisions of the C.N.T. Act may not apply.
As noticed hereinbefore by the indenture dated 7.1.1942, a chhaparbandi lease was granted by ex-landlord in favour of M/s Ranchi Zamindari Limited and who in turn had transferred the said property.
According to the Petitioners they have been using the land for chhaparbandi purposes and have also been paying the chtiaparbandi rents.
In this view of the matter, in ray opinion, the Respondent No. 3 should consider the matter afresh by, giving opportunities to the parties to lead additional evidence on the aforementioned point.
In the result, this application is allowed and the impugned orders as contained in Annexures-4, 5 & 6 are set aside, and the case is remitted back to the Respondent No. 3 for a fresh decision in accordance with law. In the facts and circumstances of the case there will be no order as to costs.